tition. บ. Philips. 535. 33. It is laid down by Lord Holt that joint tenants of an ad- Effect of a parvowson may make partition to present by turns; which will Ep. Sarum divide the inheritance aliquatenus, and create separate rights. 1 Ld. Raym. So that the one shall present in the one turn, and the other in the other; which is a sufficient partition, for partition of the profits is a partition of the thing, where the thing and the profits are the same. It cannot make two advowsons out of one, but it can create distinct rights to present in the several turns. And in this case each of the parties is said to have advocationem medietatis ecclesiæ. 34. By the statute 7 Ann. c. 18. s. 2. it is enacted, "That if coparceners, or joint tenants, or tenants in common, be seised of an estate of inheritance in the advowson of any church or vicarage, or other ecclesiastical promotion, and a partition is or shall be made between them, to present by turns, that thereupon every one shall be taken and adjudged to be seised of his or her separate part of the advowson, to present in his or her turn; as if there be two, and they make such partition, each shall be said to be seised, the one of the one moiety to present in the first turn, the other of the other moiety to present in the second turn. In like manner, if there be three, four, or more; every one shall be said to be seised of his or her part, and to present in his or her turn." may nominate. 35. Where a person mortgages an advowson, the legal right Mortgagors to present is transferred to the mortgagee; yet he cannot present a clerk of his own choice, whether the advowson be appendant or in gross. For since the presentation is gratuitous, and the Amhurst v. Dowling, mortgagee cannot account for any benefit from it, a court 2 Vern. 401. of equity will compel him to present the nominee of the mort- Gully v. Selby, Com. Rep. 343. gagor. 36. A petition was presented on behalf of a mortgagor, that Mackenzie v. the mortgagee of a naked advowson might accept of his nominee, and present him upon an avoidance, the incumbent being dead. It was insisted for the mortgagee, that as there was a large arrear of interest, he ought to present, if any advantage accrued from it; and the case in Peer Williams was cited, where the plaintiff's father, being possessed of a 99 years' term of the advowson of Eckington, made a mortgage thereof to the defendant, and in the mortgage deed was a covenant, that on Robinson, 3 Atk. 559. Gardiner v. Griffith, 2 P. Wms. 404. And tenants by statute merchant. every avoidance of the church, the mortgagee should present; in which the Court gave no opinion; but seemed to incline that the mortgagee had a right to present. Lord Hardwicke was of opinion that the mortgagor ought to nominate; and that it was not presumed any pecuniary advantage was made of a presentation. He observed that these were indifferent securities: but the mortgagee should have considered it before he lent his money; and, instead of bringing a bill of foreclosure, as he had done in this case, should have prayed a sale of the advowson. The next day he mentioned that he was not clear as to this point; and that he had looked into the case of Gardiner v. Griffiths, according to the state of it in the House of Lords, where the decree of Lord King was affirmed, and said that was a mixed case; and that he doubted himself whether a covenant, that the mortgagee should present, as was the case there, was not void; being a stipulation for something more than the principal and interest; and the mortgagee could not account for the presentation. The question was adjourned for farther consideration to the next day of petitions, when the mortgagee not being able to find any precedent in his favour, gave up the point of presenting; and an order was made that the mortgagor should be at liberty to present, and the mortgagee was obliged to accept of the mortgagor's nominee. (a) 37. It was formerly understood that where a manor, to which an advowson was appendant, was extended on a statute merArundel v. Ep. chant; if the church became void during the cognizee's estate, Gloucester, Ow. 49. And bankrupts. he might present to it. But it is to be presumed that if a case of this kind were now to arise, the cognizor of the statute would be allowed to nominate a clerk to the cognizee; by analogy to the case of a mortgage. 38. It has been held that if a patron of a church is a bankrupt, and the church becomes void before the advowson is sold under the commission, the bankrupt shall present, or nominate (b), to the church. (a) [Where the advowson is in trustees they have the legal office of presenting; the cestuique trust has the right of nominating to the vacant benefice.-Vide supra, sect 2. note, infra s. 71.] (b) [By the 77 sect. of stat. 6 Geo. 4. c. 16. the assignees of the bankrupt are autho rized to execute all powers which the bankrupt could legally execute for his own benefit, abled from pre Wats. 106. 39. With respect to the persons who are disabled from pre- Who are dissenting to a church, none but natural-born subjects can exer- senting. cise this right. Therefore, if an alien purchases an advowson, and the church becomes vacant, the Crown shall have the presentation. 40. Where a person seised of an advowson is outlawed, and the church becomes vacant while the outlawry is in force, such person is disabled from presenting, and the avoidance is forfeited. to the Crown. 41. By the statute 1 Will. and Mary, sess. 1. c. 26. every person who shall refuse or neglect to subscribe the declaration mentioned in an act of that parliament, intituled, “An Act for the better securing the Government, by disarming Papists;" shall be disabled to make any presentation to a benefice. And the chancellor and scholars of the universities of Oxford and Cambridge shall have such presentation. (c) 42. By the third section of this statute, the trustees of Roman Catholics are disabled from presenting to any benefice. And by the fourth section, such trustees, by presenting without giving notice of the avoidance to the vice-chancellor of the university, to whom the presentation shall belong, within three months after the avoidance, become liable to a penalty of 5001. 43. By the statute 12 Ann. st. 2. c. 14. s. 1. Roman Catholics are disabled from presenting to any benefice; and every such presentation is declared void to all intents and purposes. By the stat. 11 Geo. 2. c. 17. s. 5. every grant made of any advowson or right of presentation, collation, nomination, or donation to any benefice, by any person professing the Catholic religion, or by any mortgagee or trustee of such person, shall be null and void; unless it be for valuable consideration to a Protestant purchaser. 44. [By the recent stat. 10 Geo. 4. c. 7. for relief of his majesty's Roman Catholic subjects, it is provided, sect. 16. that nothing therein contained should extend to enable any person, otherwise than as he was then (13th April, 1829,) by law enabled, to exer (except the right of nomination to any ecclesiastical benefice.) As the void turn cannot be sold, it is not assets for the benefit of the creditors.] (c) The presentation to the livings situated south of the Trent belong to Oxford; and those situated north of that river belong to Cambridge.—Note to former edition. Lunatics. Lect. Vol. I. 409. Examination of the clerk. 2 Inst. 631. Specot's case, 5 Rep. 57. 2 Roll. Ab. 356. Wats. 230. 2 Inst. 631. cise any right of presentation to any ecclesiastical benefice whatsoever; or to repeal, vary, or alter in any manner the laws then in force in respect to the right of presentation to any ecclesiastical benefice.] 45. A lunatic cannot present to a church, nor his committee. But the Lord Chancellor, by virtue of the general authority delegated to him by the crown, presents to all livings whereof lunatics are patrons, whatever the value of them may be; generally, however, giving it to one of the family. Doctor Woodeson says this right was first asserted by Lord Talbot, whose example has been followed by all his successors. 46. The right of presentation to an ecclesiastical benefice is but a limited trust, for the bishops are still in the law the judges. of the qualifications of those who are presented to them for that purpose. Patrons never had the absolute disposal of their churches, upon their own terms; for if they did not present fit persons, within the limited time, the care of appointing a proper person to fill up the vacant benefice returned to the bishop. And as the law requires that the clerk presented be idonea persona, various exceptions may be made to the character and qualifications of the person presented. 1. Concerning his person, if he be under age, or a layman. 2. Concerning his conversation, if it be irregular or criminal. 3. Concerning his ability and sufficiency to discharge his pastoral duty, which belong to the bishop, as the proper ecclesiastical judge; who may and ought to refuse the person presented, if he be not idonea persona. 47. It was resolved by the Court of King's Bench in 32 Eliz. that all such as are sufficient causes to deprive an incumbent, are also sufficient causes for refusal of a presentee. 48. It is a good cause of refusal of a clerk that he is simoniacus in the same presentment; that is, has made a corrupt contract to be presented; or that he is simoniacus in another benefice. 49. When the bishop refuses without good cause, or unduly delays to admit and institute a clerk to the church, to which he is presented, the clerk may have his remedy against the bishop in the ecclesiastical court. 50. If the patron finds himself aggrieved by the ordinary's refusal of his clerk, he may have his remedy by writ of quare impedit, in the temporal court; and in such case the ordinary must shew the cause of his refusal, specially and directly; not only that he is a schismatic or a heretic, but also the particular schismatical or heretical opinions with which he is charged must be set forth; for the examination of the bishop does not finally conclude the plaintiff; and without shewing specially, the Court cannot inquire and resolve whether the refusal be just or good. If the cause of refusal be spiritual, the Court shall write to the metropolitan to certify thereof; or if the cause be temporal, and sufficient in law, which the temporal court shall decide, the same may be traversed, and an issue thereupon joined and tried by a jury. 51. It has been determined by the House of Lords that it was a good plea on the part of a bishop, in a quare impedit, that the presentee was a person not sufficient or capable in learning to have the church; and that he need not set forth in what kind of learning, or to what degree, he was defective. Ep. Exeter v. 52. As it is of the utmost importance to the public that eccle- Of simony. siastical benefices should be conferred on those only whose learning and piety qualify them for the duties annexed to such offices; the law has always been extremely careful in watching over those who have advowsons, lest they should be influenced, in the exercise of their right of presentation, by any corrupt or improper motives. It has therefore been established from the earliest 1 Inst. 17 b. times that no pecuniary or other valuable consideration ought, in any instance, to be given or received for procuring a presentation to a church. This offence is called simony in the canon law the person making a corrupt contract of this kind is called simoniacus, and a person thus presented to a church is said to be simoniacè promotus. 53. By the statute 31 Eliz. c. 6. it is enacted, for avoiding of simony, that if any patron, for any sum of money, reward, gift, profit, or benefit, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance, shall present or collate any person to an ecclesiastical benefice or dignity, such presentation shall be void, the presentee be rendered incapable of ever enjoying the same benefice, and the crown shall present to it for that time only. 89 a. 3 Inst. 153. 6 Bac. Abr. 188. 2 Bar. & Cress. 652.per Best, J. 54. It was formerly held, that if a person who had acquired a Wats. 96. benefice by simony, enjoyed it during his life, the king might present after his death, because the church, notwithstanding the |
